JUDGMENT
M. Sasidharan Nambiar, J.
1. Defendant in a suit for recovery of possession with mesne profits and damages is challenging the decree granted in favour of the respondent/plaintiff by a learned single Judge in A. S. 540/91. Respondent instituted the suit before sub-Court, Kasaragod as an indigent person. Under Ext. A1 agreement for sale entered into by the respondent and appellant, plaint schedule properties were put in the possession of the appellant. The total consideration fixed for the plaint schedule properties was Rs. 33,000/-. The agreement was executed on 1-12-1977. Out of the consideration Rs. 11,000/- had to be paid on 30-4-1978 without interest and Rs. 11,000/-with interest at 10% had to be paid on or before 30-4-1979 and the remaining Rs. 11,000/- with the same rate of interest had to be paid on or before 30-4-1980. It was contended that respondent was ready and willing to execute the necessary sale deed and in fact original of Ext. A2 registered lawyer notice dated 30-9-80 was sent calling upon the appellant to get the sale deed executed after paying the entire sale consideration, appellant did not perform his part of the contract and was not willing to perform it. It was also contended that plaint schedule properties include areca garden which was damaged by the negligence of the appellant and Rs. 25,000/- would be required to restore the garden to its original condition. Respondent has claimed damages for the same. Recovery possession was sought on the strength of his title with mesne profits and damages. Plaint schedule properties are four items. Item No. (1) is 92 cents of Nanja land in R. S. 318/6 and item No. 2 is 2.53 acres of Nanja land in R. S. 324/1 and item No. 3 is 1.35 acres of Nanja land in R. S. 320/5B and item No. 4 is 20 cents of Nanja land in survey No. 320/4. All the properties are in Perdala Village of Kasaragod Taluk. Appellant resisted the suit admitting Ext. A1 agreement but contending that agreement was got executed by making the appellant believe that respondent is the absolute owner of the plaint schedule properties and later Subramonia Bhat and Hrishikesh Bhat brothers of the respondent claimed right over the properties disputing the exclusive title of respondent and due to the dispute appellant requested the respondent to settle the matter between them and execute the sale deed in his favour and inspite of several attempts to settle the dispute, respondent did not settle the same and after issuance of Ext. A2 notice, there was a compromise talk in which respondent, his brothers, appellant and one Parameswara Bhat took part and though respondent agreed to settle the matter, the suit was filed. Appellant contended that he has been ready and willing to perform his part of the agreement and respondent has already received Rs. 15,231/- being part of the sale price and as the agreement is still subsisting and the respondent did not resign from the contract, he is not entitled to claim recovery of possession. It was also contended that no damage was caused to the properties as alleged and respondent is not entitled to the decree for recovery possession or mesne profits. Learned Sub-Judge framed the necessary issues. On the side of respondent, he was examined as PW 1 and on the side of the appellant, he was examined as DW 1. Exts. Al and A4 and Ext. Cl were marked on the side of the respondent and Exts. 81 to 89 were marked on the side of the appellant. The learned Sub-Judge on the evidence found that though respondent claimed absolute right and title to the plaint schedule properties, he has no absolute title over the entire properties mentioned in Ext. A1 and so appellant cannot compel respondent to obtain the sale deed for the plaint schedule properties and from the evidence, it was clear that respondent was not prepared to execute the sale deed after receiving the consideration shown in the agreement and insisted for getting the market price for the properties and there is no evidence to prove that appellant refused to perform his part of the contract and hence respondent is not entitled to the decree sought for. Consequently the suit was dismissed.
2. Respondent challenged the decree and judgment before this Court in A. S. 540/91. Learned single Judge on the pleadings and evidence found that respondent was admittedly in possession of the entire properties on the date of Ext. A1 agreement which were put in possession of the appellant under the agreement and appellant did not take steps to get specific performance of the agreement for sale and respondent was not able to execute the sale deed in respect of the entire plaint schedule properties and the contract has therefore become frustrated and as the agreement is not enforceable, respondent is entitled to recover possession of the properties on the strength of his title on his own behalf and on behalf of the co-owners and appellant could defend the claim only under Section 53A of Transfer of Property Act and there is no pleading on that aspect and therefore respondent is entitled to the decree for recovery of possession. The learned single Judge granted a decree for recovery of possession with mesne profits from the date of the suit with a direction to fix the quantum in the execution proceedings. Respondent did not challenge the non-granting of a decree for damages. Defendant has filed this further appeal contending that learned single Judge erred in finding that respondent is entitled to the decree for recovery of possession. It was contended that appellant who was put in possession of the plaint schedule properties under the agreement for sale, cannot be treated as a trespasser and respondent who claimed absolute right over the properties has no such title and he cannot be treated as a co-owner suing on behalf of other owners and in any event even if appellant is a trespasser, respondent is entitled to sue for recovery of possession of only his share in the properties. It was contended that provisions of Section 53A of Transfer of Property Act squarely applies to the case and decree for possession could not have been granted and on the evidence it should have been found that respondent was not ready and willing to perform his part of the contract and appellant is entitled to continue in possession and the decree granted is unsustainable.
3. We heard Advocate Sri Sethu-madhavan, appearing for the appellant and Advocate Sri. Balakrishna Iyer appearing for the respondent.
4. The argument of Advocate Mr. Sethumadhavan was that learned single Judge omitted to take note of the fact that ingredients of the provisions of Section 53A of Transfer of Property Act was specifically pleaded and appellant has established the ingredients to get the protection under Section 53A and therefore no decree for recovery possession could have been granted in respect of the plaint schedule properties, which were put in the possession of the appellant under Ext. A1 agreement for sale. The learned Counsel also argued that neither the learned Sub-Judge nor the learned Single Judge consider the question whether appellant is entitled to the protection under Section 53A of Transfer of Property Act and as the appellant established all the ingredients to get the protection of the said Section, the decree granted in favour of the respondent is unsustainable. Learned Counsel further argued that though respondent made the appellant believe that he has absolute title to the entire plaint schedule properties, it is proved that he has no absolute title over the entire properties and Ext. A5 letter sent by the respondent himself establish that he was not prepared to sell the plaint schedule properties for the consideration shown in Ext. A1 and therefore it should have been found that the sale deed could not have been obtained because of the unwillingness of the respondent and appellant has performed his part of the agreement and the degree granted in favour of the respondent is unsustainable. Learned Counsel finally argued that in any event appellant is not a trespasser but was put in possession of the plaint schedule properties under a valid agreement for sale and therefore he cannot be termed a trespasser and as he was not in wrongful possession of the property, decree for mesne profits should not have been granted against him.
5. Advocate Mr. Balakrishna Iyer argued that even according to appellant he was not prepared to get the sale deed executed as according to him, respondent has no absolute title to the properties and appellant never wanted the respondent to transfer his rights over the properties and appellant had not performed any part of the agreement and therefore as rightly found by the learned Single Judge Ext. A1 agreement has become frustrated and unenforceable and so appellant is not entitled to retain possession of the property and respondent is entitled the decree for recovery of possession. It was also argued that though it was contended that part of the sale consideration was paid to the respondent, no evidence was adduced and on the evidence it was rightly found that appellant failed to perform his part of the agreement and is not entitled to the protection under Section 53A of Transfer of Property Act. The learned Counsel further argued that as the agreement itself has become unenforceable because of the frustration, possession of the appellant thereafter is only as a trespasser and he is therefore liable to pay mesne profits and there is no reason to interfere with the decree for recovery possession and mesne profits granted from the date of institution of the suit and the appeal is only to be dismissed.
6. As per Ext. A1 agreement for sale dated 1-12-77 respondent agreed to sell and appellant agreed to purchase the four items of plaint A schedule properties, for a total consideration of Rs. 33,000/-. Admittedly the entire properties, were put in possession of the appellant by the respondent under Ext. A1 agreement on the date of execution of Ext. A1. No advance was paid at the time of execution of Ext. A1 agreement. Instead it was provided that Rs. 11,000/- has to be paid on or before 30-4-78 and out of the balance Rs. 11,000/- with interest at 10% per annum is to be paid on or before 30-4-79 and Rs. 11,000/- with interest at 10% on or before 30-4-80 and appellant has to obtain the registered sale deed. The agreement also provides that in case appellant failed to perform his part of the agreement, he is not entitled to claim back the amount paid and shall surrender possession of the plaint schedule properties to the respondent. In case respondent failed to execute the sale deed, appellant is entitled to get the sale deed executed through Court and also recover damages of Rs. 20,000/-. Appellant admittedly did not take any steps to get specific performance of the agreement. On the other hand admittedly respondent issued Ext. A2 notice dated 30-9-80, five months after the last date fixed for getting the sale deed executed as per Ext. A1 agreement, calling upon appellant to perform his part of the contract agreeing to execute the sale deed on receipt of the sale consideration. Though appellant received the notice, he did not send any reply. It is thereafter respondent instituted the suit for recovery of the possession of the properties alleging that appellant has broken the agreement and he is not entitled to continue in possession of the properties which were put in his possession pursuant to Ext. A1 agreement.
7. Though learned Sub-Judge found that respondent did not have absolute title to the whole properties, appellant did not fail to perform his part of the agreement. The learned single Judge on the evidence found that as respondent is not having absolute title to the whole properties he is not entitled to agree for sale of the properties of his brothers and so there was no enforceable agreement for sale. The contention of the respondent that the agreement has become frustrated was also accepted by implication. The questions to be settled are:
1) Whether Ext. A1 has become unenforceable.
2) Whether Ext. A1 contract has become frustrated.
3) Whether appellant has performed his part of the agreement.
4) Whether appellant is entitled to the protection under Section 53A of Transfer of Property Act.
5) Whether respondent is entitled to the decree for recovery of possession and mesne profits awarded.
8. Ext. A1 agreement for sale was executed jointly by the respondent and appellant. Under the agreement respondent agreed to convey all his rights over the plaint schedule properties for the consideration named thereunder. Appellant has agreed to purchase the same within the period fixed. True, respondent has claimed that he has absolute right and title to the four items of plaint A schedule properties agreed to be transferred thereunder. It has come out in evidence that out of 92 cents in item No. 1 of the plaint schedule properties, respondent has absolute title only over 88 cents and for the remaining 4 cents one of his brothers has a fraction share. So also out of 2.53 acres in item No. 2 of the plaint schedule properties respondent has absolute title only over 2.13 acres and for the remaining 40 cents he has only half right and the remaining half right vests with his brother. So also over item No. 3 of the plaint schedule properties, respondent has only a fractional share in the properties. He has absolute title to item No. 4 of the plaint schedule properties. It cannot be said that because of lack of absolute title over the entire plaint schedule properties agreed to be sold under Ext. A1, the agreement is legally unenforceable as found by the learned single Judge. Even if respondent has no absolute title over four items of Plaint A schedule properties he has absolute title over major portion of the properties and has broken share over the remaining properties. Respondent is definitely entitled to transfer the said right and appellant is entitled to purchase the same. Therefore it cannot be said that Ext. A1 agreement is not a lawful agreement or is unforceable.
9. Though respondent had contended that Ext. A1 agreement for sale has become frustrated on account of the unwillingness of appellant to get the sale deed executed from the respondent there was no specific finding by the learned single Judge that the contract has become frustrated. Section 56 of the Indian Contract Act provides for frustration of a contract. The section applies to a case where there is an agreement to do an act and subsequently, by reason of some event which the promisor could not prevent it becomes impossible of performance. Section 56 reads as follows:
Agreement to do impossible act. An agreement to do an act impossible in itself is void.
Contract to do act afterwards becoming impossible or unlawful. A contract to do an act which, after the contract is made becomes impossible, or, by reason of some event which the promisor could not prevent, unlawful, becomes void when the act becomes impossible or unlawful.
Compensation for loss through non-performance of act known to be impossible or unlawful.Where one person has promised to do something which he knew or, with reasonable diligence, might have known, and which the promisee did not know, to be impossible or unlawful, such promisor must make compensation to such promisee for any loss which such promisee sustains through the non-performance of the promise.
Apex Court in Satyabrata Ghose v. Mugneeram Bangur & Co. analysed the Section and held that first paragraph of the Section lays down the law in the same way as in England and it speaks of something which is impossible, inherently or by its very nature and no one can obviously be directed to perform such an act. The second paragraph enunciates the law relating to discharge of contract by reason of supervening impossibility or illegality of the act agreed to be done. The word ‘impossible’, has not been used in the section, in the sense of physical or literal impossibility. The performance of an act may not be literally impossible, but it may be impracticable and useless from the point of view of the object and purpose which the parties had in view, and if an untoward event or change of circumstances totally upsets the very foundation upon which the parties rested their bargain, it can very well be said that promisor finds it impossible to do the act which he promised to do. The doctrine of frustration is really an aspect or law of discharge of contract by reason of supervening impossibility or illegality of the act agreed to be done and comes within the purview of Section 56 of Indian Contract Act. It would be incorrect to say that Section 56 applies only to cases of physical impossibility. Section 56 lays down a rule of positive law and does not leave the matter to be determined according to the intention of the parties. The doctrine of frustration of the contract is applied on the subsequent impossibility of the agreement when it is found that the whole purpose or basis of a contract was frustrated by the intrusion or occurrence of an unexpected event or change of circumstances which was beyond what was contemplated by the parties at the time when they entered into the agreement. When such an event or change of circumstances occurs which is so fundamental as to be regarded by law as striking at the root of the contract as a whole, court can pronounce the contract to be frustrated. For that purpose Court has to examine the contract and the circumstances under which it was made. The belief, knowledge and intention of the parties are only evidences. On the evidence Court has to conclude whether the changed circumstances destroyed altogether the basis of the object. When there is frustration, the dissolution of the contract occurs automatically. It does not depend on the ground of repudiation or breach or on the choice or election of either of the parties. It depends on the effect of what has actually happened on the possibility of performing the contract.
10. The doctrine of frustration comes into play when a contract becomes impossible of performance after it is made on account of circumstances beyond the control of the parties. It is a special case of discharge of the contract. In the event of frustration of contract, the contract comes to an end and future performance is excused on both sides. To attract Section 56 of the Indian Contract Act, the following conditions must be fulfilled. (1) There should be a valid and subsisting contract between the promisor and promisee. (2) there must be some part of the contract yet to be performed (3) the contract after it is entered, becomes impossible to be performed. (4) the impossibility is by reason of some event which the promisor could not prevent (5) the impossibility is not induced by the promisor or due to his negligence.
11. Therefore, unless the appellant or respondent has a case that by reason of some event which had taken place after the execution of the agreement, the performance of the agreement has become impossible of performance. Section 56 of the Contract Act cannot be attracted. Neither appellant nor respondent has a case that any subsequent event made the contract impossible of performance. What was canvassed by the respondent was that appellant was not prepared to take the assignment of the right of the respondent over the plaint schedule properties for the reason that he did not have the absolute title and so the contract has become frustrated. What was agreed under Ext. A1 by the parties was to sell and purchase the right of the respondent over the plaint schedule properties in favour of the appellant. True it provides that respondent has absolute title to all the properties. The fact that over a portion of the properties brothers of the respondent have fractional share will not make the agreement impossible of performance, as found by the learned single Judge. Out of 92 cents in item No. 1 of the plaint schedule properties in R. S. No. 318/6, respondent has admittedly absolute title over 88 cents and his brother Subromanya Bhat alone has right over remaining 4 cents. Out of 2.53 acres in R. S. No. 324/1 (item 2 of plaint schedule properties) respondent has absolute title over 2.13 acres and half right over the remaining 40 cents. Respondent has only fractional share over item No. 3 of the plaint schedule properties. But he has absolute title to item No. 4 of the plaint schedule properties. The right of the respondent over the properties are transferable. Hence Ext. A1 contract has not become frustrated or unenforceable. Even if respondent has no absolute title over the entire plaint schedule properties as found by the learned single Judge, he has absolute title over 84 cents of item No. 1 and item No. 4 of he plaint schedule properties and also has fractional shares and title over the remaining properties. That is definitely transferable as agreed to in Ext. A1.
12. As rightly found by the learned single Judge, appellant was put in possession of the plaint schedule properties by the respondent under Ext. A1 agreement for sale and that too as part performance of the agreement. Appellant did not seek specific performance of the agreement, inspite of Ext. A2 notice sent by the respondent. Respondent instituted the suit seeking a decree for recovery of possession on the strength of his title. Still appellant did not seek performance of the agreement. The only defence available to him is under Section 53A of the Transfer of Property Act. The learned single Judge found that appellant has not specifically claimed the benefit and as he did not perform his part of the agreement, he is not entitled to the benefit of Section 53A of Transfer of Property Act. As rightly argued by learned Counsel appearing for the appellant, failure of the appellant to specifically claim the benefit under Section 53A, will not disentitle him to get the benefit, if he is otherwise entitled to the same provided the ingredients of the Section was pleaded in the written statement. If appellant had pleaded the ingredients of Section 53A of Transfer of Property Act, his failure to specifically claim the benefit under the said Section is not at all fatal.
13. Section 53A of Transfer of Property Act reads:
Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty,
and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract,
and the transferee has performed or is willing to perform his part of the contract,
then, notwithstanding that where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract.
Analysing Section 53A of Transfer of Property Act, Apex Court in Nathulal v. Phoolchand has laid down the following conditions which are necessary for making out the defence of part performance of the contract as provided under Section 53A of the Transfer of Property Act.
(1) that the transferor has contracted to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty.
(2) that the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession continues in possession in part performance of the contract.
(3) that the transferee has done some act in furtherance of the contract; and
(4) that the transferee has performed or is willing to perform his part of the contract.
If appellant had pleaded these ingredients, and had proved that the conditions were satisfied he is entitled to defend his possession by recourse to Section 53A of the Act. A perusal of the written statement disclose that it has been specifically pleaded by the appellant that he has performed his part of the contract and was always ready and willing to perform his part of the contract. If so, it is to be found that appellant had claimed the protection provided under Section 53A of Transfer of Property Act.
14. The argument of Advocate Sri Sethumadhavan was that neither learned Sub-Judge nor learned single Judge considered this question in the proper perspective and therefore the case has to be remanded back to the trial Court. It is true that the learned Sub-Judge did not consider the sustainability of the defence under Section 53A of T. P. Act. It was found that respondent did not perform his part of the agreement and therefore is not entitled to the recovery of possession sought for. In view of that finding, the defence raised under Section 53A was not considered. The learned single Judge found that appellant is not entitled to the protection under Section 53A of Transfer of Property Act as he did not specifically plead the same.
15. The question is whether appellant is entitled to the protection of Section 53A of Transfer of Property Act. Ext. A1 agreement specifically provides that appellant has to obtain the sale deed from the respondent on or before 30-9-1980. The sale consideration was Rs. 33,000/-. Ext. A1 provides that the consideration has to be paid in three instalments. Rs. 11,000/- has to be paid without interest on or before 30-4-79. Rs. 11,000/- with interest at 10% has to be paid on or before 30-4-79. The last payment has to be made on or before 30-4-80 with interest at 10%. The agreement specifically provides that appellant has to obtain receipt for the payments.
16. When appellant is claiming protection from recovery of possession, by virtue of Section 53A of Transfer of Property Act, the burden is on the appellant to plead and prove all the essential conditions enunciated in the Section. Eventhough appellant was put in possession of the plaint schedule properties towards part performance of the agreement for sale, to claim the protection of Section 53A of the T. P. Act, appellant has to establish that he has done some act in furtherance of the contract and has performed or is willing to perform his part of the contract. As rightly pointed by Advocate Mr. Balakrishna Iyer, there is absolutely no evidence to support the case of the appellant that he has performed any part of the agreement or that he was ready and willing to perform his part of the contract. Inspite of Ext. A2, notice sent by the respondent calling upon the appellant to pay the entire consideration provided under the agreement, appellant did not even send a reply. He did not send any reply to the respondent that unless respondent gets the right of his brothers and perfected his absolute title over the entire plaint schedule properties, he cannot take the sale deed. Appellant has never expressed the intention to take the sale deed executed transferring the right and title of the respondent to the plaint schedule properties. There is nothing in evidence to hold that appellant was ready and willing to perform his part of the agreement. Moreover, when Ext. A1 specifically provides that appellant has to pay Rs. 11,000/- each in three instalments within the respective dates fixed thereunder and shall obtain receipts, appellant did not admittedly obtain any receipt evidencing the said payments. Even according to appellant, he did not pay Rs. 11,000/-before 30-4-1978 or the second instalment of Rs. 11,000/- on or before 30-4-1979 or the balance on or before 30-4-80. Ext. A2 notice itself was sent by respondent five months after the expiry of the period fixed under Ext. A1. What was argued by Advocate Sethumadhavan was that Ext. A4 letters establish that appellant had paid part of the sale consideration. What was contended by the appellant was that he had paid Rs. 15,231/- out of the agreed sale price. But Ext. A4 series do not substantiate the payments. Ext. A4 series are the letters sent by the respondent to the appellant requesting payments for Rs. 1000/- or less, on different occasions. There was no evidence to prove that payments were made as requested thereunder. Even if it is taken that appellant had paid some amount thereunder, there is no evidence to prove that Rs. 15,231 /- as claimed in the written statement was paid. On the evidence the learned single Judge rightly found that appellant did not establish that he had paid either Rs. 15,231/-or any part of the consideration agreed under Ext. A1. On the evidence, it can only be held that appellant did not do anything in furtherance of the contract. Moreover, it is clear that appellant was not ready and willing to perform his part of the contract. Therefore appellant is not entitled to claim the protection under Section 53A of T. P. Act.
17. When appellant was put in possession of the entire plaint schedule properties, by the respondent, in part performance of the agreement for sale and appellant has not done any act in furtherance of the contract and is not ready and willing to perform his part of the contract, respondent is entitled to get the recovery of possession sought for. Eventhough appellant is only a co-owner in respect of the part of the plaint schedule properties, as rightly found by the learned single Judge, even as a co-owner appellant is entitled to get recovery of possession sought for. He is entitled to recover possession of the major parts of the plaint schedule properties of his own on the strength of his title. The decree for recovery of possession granted is perfectly legal and correct. We find no reason to interfere with the finding of the learned single Judge that respondent is entitled to recover possession of the plaint schedule properties from the appellant.
18. Then the only question is on the liability to pay mesne profits. The learned Counsel Sri Sethumadhavan vehemently argued that as the appellant was put in possession of the property under Ext. A1 agreement for sale, his possession cannot be termed wrongful possession and therefore appellant is not liable to pay any mesne profits. Learned Counsel also argued that as per the definition of “mesne profits” provided under the Code of Civil Procedure, appellant cannot be termed as in wrongful possession of the properties and instead has been in possession of the properties by virtue of Ext. A1 agreement and so he is not liable to pay any mesne profits. Reliance was placed on the decision of the Apex Court in Mohan Lai v. Mirza Abdul Gaffar . The appellant in that case came into possession of the suit properties pursuant to an agreement for sale. Though he filed a suit for specific performance of the contract for sale, it was dismissed. The respondent who purchased the suit property subsequently from the promisor filed the suit for possession which was decreed by the trial Court but was reversed by appellate Court, which was set aside by the High Court in the Second Appeal. The appellant challenged it before the Apex Court. While upholding the judgment in the Second Appeal, the Apex Court held that respondent is entitled to the recovery of possession is not entitled to claim damages from the appellant as appellant remained in possession of the properties under the agreement for sale. Though respondent had claimed damages in this suit it was not granted by the learned single Judge. Appellant has not challenged that finding. What was awarded by the learned Single Judge was only mesne profits from the date of institution of the suit. Even though appellant was put in possession of the plaint schedule properties under Ext. A1, it was the admitted case that appellant did not pay any amount as advance. What was provided under Ext. A1 was to pay Rs. 11,000/- being one third of the agreed sale consideration on or before 30-4-1978. The second instalment of Rs. 11,000/- has to be paid on or before one year from that date and the balance of Rs. 11,000/- was to be paid one year from that date. Admittedly a portion of the plaint schedule properties is areca garden yielding income. Appellant was permitted to enjoy the income of the properties, without paying any advance whatsoever. Appellant did not seek a decree for specific performance of the agreement. Evidence shows that he was not ready and willing to perform his part of the agreement. It was also found that appellant is not entitled to the protection of Section 53A of T. P. Act and respondent is entitled to recover possession of the properties. In such circumstances, when respondent was allowed to recover possession of the plaint schedule properties from the appellant, atleast from the date of the suit, respondent is entitled to get the income of properties, which was claimed as mesne profits. We find no reason to interfere with the finding of the learned single Judge granting mesne profits, the quantum of which was left opened to be decided in the execution proceedings.
We find no merit in the appeal and it is dismissed but without costs.